Month: December 2014

The Asia-Pacific today is characterized by a mixture of intergovernmental organizations, alliance blocs, and individual states of varying levels of strength, organization, and regional clout. Indeed, the Asia-Pacific as a region perhaps stands alone in the world for the extent to which the complex interplay of these various actors influences, and is influenced by, regional dynamics. Ultimately, it is difficult to predict which of these actors will come to dominate the region over the next decade. As stated, their development and regional position are all influenced to varying degrees by changes in regional dynamics. In the event of a belligerently rising China, for example, the region may come to be dominated by a bipolarity of alliance blocs. Alternatively, should regional prosperity and interconnectedness continue to grow, it may come to be dominated by intergovernmental organizations. Nonetheless, taking into consideration general regional trends, a basic prediction for the next decade can be made: the Asia-Pacific of 2024 will likely be characterized by the dominance of individual states, yet within a broad alliance bloc/treaty framework.

The Asia-Pacific is a rising region in which various states, such as China, Japan, and South Korea, are becoming increasingly more economically, militarily, and internationally powerful and significant. At the same time, the United States, which has largely dominated the region over the last half century, is experiencing a gradual decline. Even if the decline of the United States is overstated, as it often may be, the extent of its power relative to the rising states of the Asia-Pacific is narrowing. In light of this, the states of the Asia-Pacific are becoming more comfortable with and more willing to craft their own foreign policy goals and intentions, and are more capable of unilaterally engaging the regional and international community. Considering the complex interdependence and interconnectedness which has emerged in the region, individual states are beginning to reevaluate longstanding economic and security relationships and are starting to develop new ones in order to preserve their continued economic growth. Meanwhile, because of the security threats manifest from the rise of powers such as China, they are starting to come into arrangements which balance or “hedge” against potential threats. No longer is the character of international relations in the Asia-Pacific dominated by the United States and its alliance system; rather, it is coming to be dominated by the actions and interactions of rising regional states.

That said, the United States’ alliance system still serves as a framework in which this balancing takes place, and still plays a prominent role in the region. States that have traditionally been allied with the United States, such as Japan and South Korea, still look to it for protection against an increasingly hegemonic China, and such is likely to be the case in the next decade. Though these states may be more willing to make their own unilateral foreign policy goals and decisions, such decisions are likely to fall within the foreign policy interests of the American alliance system. Seeking a degree of protection against China, these states will turn to the American alliance bloc; as of yet, there is no other real option. Meanwhile, states which have historically fallen outside of the American alliance system may seek to join it as a strategy to “hedge” against China. Even if such a decision is taken by a state solely to maintain its own position instead of supporting the alliance, it will nonetheless reinforce the significance the American alliance bloc plays in the region. At the same time, China is seeking to foster its own close security and economic ties with various states in order to create a counter to the American alliance system. To a large extent, China is doing so in order to buoy its own strength against the United States. As such, a broad alliance framework is likely to be the method through which individual states will dominate the region.

Thus, rising states in the Asia-Pacific will likely come to dominate it in the next decade. As they seek to continue their economic and military growth, they are likely to forge their own foreign policy goals and unilaterally take action. Each state is now more actively making security calculations, and accordingly is now more willing to break old arraignments or make new ones in order to preserve that security. Yet, despite this coming dominance of individual states, they will likely still fall within a system of alliances blocs. These alliance blocs, such as the American alliance system or a future Chinese alliance system, provide individual states with a degree of security and support that they cannot and would not receive if alone. Accordingly, alliance blocs will still maintain a position of dominance in the Asia-Pacific, and, if not, will at the very least help individual states come to dominate the region.

The Asia-Pacific today is a region facing a diverse array of security challenges and issues, yet none appear to pose a significant and immediate threat to continued regional stability. Undoubtedly, issues such as piracy, terrorism, and climate change are present in the region; indeed, piracy is quite rampant in the Strait of Malacca, a major global shipping route, and acts of terrorism can be seen in the 2002 Bali bombings and the 1995 attack on the Tokyo subway. Yet, despite these issues, they are not immediately pressing, and are being proactively dealt with: ultimately, regional piracy affects only a limited amount of global shipping, the region has taken active steps to countering terrorism through multilateral security arraignments and support from the United States, and the worst affects of climate change are decades away. Instead, the most important security threat facing the region today may not be an intrastate or transnational issue, but rather an interstate one. This may seem paradoxical – as a region “locked into” long-standing and stagnated international disputes, such as territorial disputes over the Senkaku islands and South China Sea, there seems to be no immediate chance for interstate conflict. Yet states in the region, especially China, have recently escalated their rhetoric involving such disputes, and have engaged in military “saber-rattling” over them. Such conditions present the opportunity for a serious security issue, that of unintended escalation into direct interstate conflict.

States “slipping” into conflict, or coming close to doing so, is not without historical precedent. One need only look at the Cuban Missile Crisis to see how military escalation and “saber rattling” over a source of diplomatic tension can bring two states to the brink of conflict, even when their leaderships have calculated that conflict is outside of their national interests. Scholars of security studies acknowledge that, though a state’s overall foreign policy goals, intentions, and actions are at the discretion of that state’s upper leadership, the “tangibles on the ground,” especially involving military action, are often under the command of the immediate military leadership. As such, military activity that brings two states into escalating levels conflict may occur if the military leadership in the immediate area of that conflict allows it do so. In the case of the Asia-Pacific, for example, a standoff between Japanese and Chinese warships in the South China Sea may escalate into conflict if the commanders of those ships unilaterally decide to conduct, or are forced to react to, a show of force. Alternatively, the circumstances of a situation may push the militaries of two states into a position of increasing hostility and tension. For example, a 2001 crash involving an American military surveillance aircraft and a Chinese warplane, which was tailing the American aircraft, quickly became a heated and tense issue between the two states, one which offered the potential for an escalation into military conflict.

Of course, as the example of the 2001 warplane crash demonstrates, the escalation of a conflict on a low level may not necessarily push two states into broader conflict and war. Yet, considering the circumstances of the region today, it seems increasingly possible that such might be the case. The states participating in territorial disputes, especially China and Japan over the South China Sea, have come to espouse strong rhetoric over those disputes. As these states’ governments increase their rhetoric, the increasingly premise their legitimacy upon a successful resolution to the issue which is within their favor. For the Chinese government, success in the South China Sea will demonstrate that the Communist Party has lifted China into a position of regional power, has made the country militarily strong, and has restored China as a rightful hegemon. For the Japanese government, success in the South China Sea demonstrates that it can successfully contain and curtail the threatening rise of China. As such, failure on the part of either state to accomplish its territorial goals will amount to the premise of what those goals are built around being delegitimized. Yet, because these goals have become a prominent part of these states’ rhetorical positions, and have become significant parts of their national perceptions and understandings, it is becoming increasingly difficult for those states to back away from the issue. Accordingly, should conflict begin to escalate on a low level, these states may be left with no better choice than to escalate it to a broader extent.

In the case of China and Japan, it may be that, should a military skirmish break out in the South China Sea, both states will need to escalate militarily in order to “save face” domestically and maintain their rhetorical position internationally. The Chinese Communist government cannot afford to back away from the South China Sea, especially after it has premised its continued governance on its ability to raise China to a position of prominence. The Japanese government cannot afford to allow China a victory in the South China Sea, thereby confirming the Japanese peoples’ fears of a rising China. The leaderships of these states have decided that it is more within their interest to escalate these territorial disputes to the brink of conflict instead of actually resolving them through conflict; however, should events spiral out of their control and conflict escalate beyond their intentions, they may be left with little option but to escalate further. A potential war between China and Japan would be devastating for regional stability and prosperity; as such, the potential for these states to slip into conflict, which seems more and more likely considering the extent to which they will “saber-rattle” and the character of their rhetoric, is perhaps the most significant security issue facing the region today.

Human activity in outer space has undergone significant developments since Neil Armstrong’s 1969 walk on the Moon. In the first and second decades of the 21st century, private companies have been established in the hope of eventually mining asteroids and other extraterrestrial bodies for their rich resource deposits.[1] Entrepreneurs and airlines have begun scheduling suborbital and orbital tourist flights, and have started the development of space-planes to accomplish them.[2] Private prototype space hotels have already been placed into orbit around Earth, and others are being planned.[3] Recognizing the lucrative economic opportunities that outer space can provide, states are starting to construct the physical infrastructure needed to support private, commercial spaceflight.[4] There have been few developments in the last half century with as much potential to reshape ‘space law’ as the rapidly increasing involvement of private actors in space activities. International space law, which governs human activity in outer space, is constituted by a series of international space treaties and non-binding agreements. The principles established in these treaties place private activity in space under the domain of national governments, while prohibiting the “national appropriation” of extraterrestrial bodies. Historically, this legal regime has been able to sufficiently govern state actors, under whom the domain of spaceflight exclusively fell. Yet, with entry of the private sector into spaceflight, there is now the question of whether international space law can adequately deal with developments in private space activity. Can states foster a private space sector while maintaining their international obligations? What are the implications of constraining treaty provisions which in effect prohibit activities such as space mining? Moving forward deeper into the 21st century, what direction will the development of ‘space law’ take to account for changes in the use of outer space, if it can account for them at all? This paper explores the myriad legal issues facing private spaceflight, in particular commercial space mining, and details the process through which international space law will likely evolve to deal with these developing industries.

Academic Perspectives on Space Law and Private Spaceflight

The legal questions surrounding private spaceflight are of great significance for the coming development of human activity in outer space. However, in their attempts to apply the established legal regime to private spaceflight, legal scholars and academics have struggled with the issues of vague treaty language and rapidly changing technological developments. As such, there are numerous diverging interpretations of established space law, its application to private spaceflight, and various predictions for the legal regime’s future.

A breadth of scholarship argues that the principles established by existing space treaties are of great importance for international conduct in space and that, moving into the future, this existing legal framework should not be abandoned. In her analysis of outer space arms control, Brisibe argues that the existing treaty regime plays a significant role in the prevention of the militarization of outer space.[5] Vereshchagin similarly argues that it is necessary to have an established, treaty-based legal regime for space, and that the fundamental principles set forth by the U.N. treaty framework serve admirably as the foundation for conduct in space.[6] These authors thus support the notion that established international space law can and should deal with the consequences and legal questions arising from private spaceflight. Entirely reshaping the legal regime, their argument goes, would undo decades of norm-setting and would undermine internationally agreed-upon principles that the U.N. space treaties describe.

Other scholars agree with the argument that existing space law provides a sufficient framework for dealing with the coming era of private space activity, but believe that the legal regime will need to be amended or reframed in order to comprehensively deal with future issues. Wheeler makes the case that there is substantial room for reform and reconsideration of established space law to meet the changing private space market. Yet, because private spaceflight is in its infancy and the legal challenges that may arise are still years away, he believes that it is still too soon to revise the treaty framework.[7] In a discussion of the possible future directions of international space law’s development, Blount describes how the legal regime might be changed to adapt to private spaceflight. He argues that the Outer Space Treaty and other treaty frameworks should be gradually amended or altered to reflect “soft law” developments and other conduct agreements.[8] He points to the creation of national legislation, especially in the United States, that regulates private spaceflight as a first step toward achieving an internationally acceptance legal regime for private space activity. To that end, Sreejith believes that space law is a receptive field which is capable of being internally robust yet externally dynamic, open to change and developments at both an international legal level and at the state level.[9]

Yet others are skeptical of international space law’s capacity to allow for developing commercial ventures in outer space, or feel that the interpretation of space treaties is strictly constraining. Brittingham argues that the modern body of space law is entirely vague on the concept of private appropriation of resources in outer space. He notes that the Outer Space Treaty does not expressly forbid non-governmental appropriation, yet its ambiguous wording can be interpreted as prohibitive of such appropriation. Developing nations favor an interpretation which provides for an equitable distribution outer space resources not based on contribution or effort, further limiting the international acceptability of commercial space activity.[10] In an analysis of commercial mining, Lee contends that governmental and private commercial space mining ventures require compliance with the principles of international space law as established in the U.N. space treaties. He notes that, because there is no positive duty to share the derived benefits from nonexclusive commercial space activities and there is a required freedom of access to all areas of celestial bodies, current space law poses a significant legal obstacle for a commercial space mining ventures.[11] Freeland examines legal issues that must be addressed in order to allow for the regulation of space tourism activities. He argues that existing international rules of space law do not appropriately address an industry that will be undertaken as a private commercial venture. As such, an argument is advanced that a uniform and comprehensive regime for passenger liability arising from space tourism activities should be developed at the international level.[12] Analyzing commercial space tourism, Failat proposes that economic activity in space should be accompanied by the implementation of a legal framework through which these activities are regulated by an international organization.[13] However, Blount, though contending that that space law should be reformed, argues that the legal regime is indeed not receptive to change. Reforming established space law on an international level will therefore be a difficult endeavor.[14]

The “Outer Space Treaty” and Private Space Mining

There is thus considerable disagreement within academia over whether and to what extent the existing legal framework for outer space activity can adequately deal with private and commercial spaceflight. This disagreement is hardly a surprise; the manner and context in which space law was created is state-centric, thereby limiting its capacity to deal with contemporary issues such as the privatization of space activity. The foundations of space law emerged during the infancy of spaceflight, a period characterized by exclusively state involvement in outer space affairs. The drafting of fundamental principles for the use of outer space was therefore conducted with the basic assumption that spaceflight would be public, not private.[15] Blount argues convincingly that these principles were designed with primarily security in mind; particular provisions which are detrimental to private commercial spaceflight, such as the “non-appropriation” of extraterrestrial bodies, were created to mitigate the possible geopolitical dangers of a heightened, colonial “space race.”[16] Contemporary space law is the product of an amalgam of historical international treaties, non-binding technical agreements and declarations, and custom. Blount asserts that this foundation for space law, which still serves as its contemporary core, no longer corresponds to the coming realities of space activity.

The development of international space law is marked by two periods, the first of which was characterized by binding international treaties and the second by non-binding agreements. The 1960s and 1970s, when spaceflight was in its early infancy and the domain of the United States and Soviet Union, encompassed the period of binding, United Nations space treaties. The first, the 1967 Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (“Outer Space Treaty”), set down basic principles governing states’ activity in outer space and has come to be seen as a “constitution for outer space.”[17] The 1972 Convention on International Liability for Damage Caused by Space Objects holds a state strictly liable for damage caused by its space objects on the Earth and in space.[18] Finally, the 1975 Convention on Registration of Objects Launched into Outer Space detailed requirements and procedures for the registration of space objects.[19]

These treaties are all fairly widely ratified, with 101 parties signatory to the Outer Space Treaty as of 2012.[20] The specific provisions of the Outer Space Treaty are highly significant to the governance of conduct in outer space, as they lay out fundamental principles which are the obligation of signatory states to uphold. Among these principles is a prohibition on claims of extraterrestrial territory in Article II, a prohibition on placing weapons of mass destruction in space in Article III, and a requirement that space exploration and use be carried out for the benefit of all countries as “the province of all mankind.” Article VI of the Outer Space Treaty provides that states are internationally responsible for ‘national activities in outer space,’ including cases where activities are carried out by non-governmental entities.[21] Accordingly, states are responsible to the same extent for private activities as they are for public activities. As the Outer Space Treaty provides the legal framework for all space activities and lays the foundation for further regulation, the violation of its terms would amount to a violation of the outer space legal regime in general. This provides a major impetus for states to take legislative action to regulate their private space sector, for they have to answer internationally for private space activity which violates international space law.[22]

The Registration Convention of 1975 provides a further regulatory mechanism enabling national governments to control private space activities and thereby uphold their international responsibilities. It stipulates that it is the duty of space-faring states to register space objects originating from their territory. The effect of registration of a space object can therefore be compared to that of the registration and consequent nationality of ships and aircraft.[23] States are entitled to extend any national legislation to space objects registered with them, and Article II of the Registration Convention makes clear that the registration of a space object leads to the retention of jurisdiction of the registration state over the space object.[24] The retention of jurisdiction under Article VIII of the Outer Space Treaty also extends beyond the space object itself to the ‘personnel thereof,’ similar to the legal status of ships or aircraft. The phrase ‘thereof’ has further been interpreted to encompass extra-vehicular activity as well; a person conducting a moon-walk, for example, can be traced back to a particular space vehicle, and thus the state that register that vehicle continues to retain jurisdiction over such a person.[25]

The language of the Outer Space Treaty is, in many cases, vague. Leaving treaty terms open to intentionally ambiguous language allowed for flexibility. States could later interpret the language to respond to unanticipated developments without technically breaking treaty obligations.[26] Article VI, however, is clear in that all activities in outer space are the responsibility of national governments. So long as states are signatory to the Outer Space Treaty, they will regulate their private space sector in order to uphold the treaty’s provisions. Article II, meanwhile, prevents the appropriation and claiming of extraterrestrial bodies. Finally, Article I establishes that the use of space be for the benefit of “all mankind.” The prospect of commercial space mining is thus faced with significant legal hurdles.

Though the technologies and practices involved in space mining are still in development, the general concept has been developed to such an extent that these legal issues are apparent in its application. Space mining entails the acquisition of an asteroid or another resource-rich extraterrestrial body, the development of mining infrastructure upon on that body, the extraction of resources, and the returning of those resources back to Earth.[27] Numerous steps of this process are in violation of the provisions laid out by the Outer Space Treaty. Landing on an asteroid or other resource-rich extraterrestrial body need not necessarily equate with an “appropriation” of territory, which again explains why the Apollo Program moon landings were not in violation of the Outer Space Treaty. Yet Article II further extends the prohibition of “appropriation” to “means of use or occupation.” Mining an extraterrestrial body would necessitate some level of use and occupation; a spacecraft would need to remain stationary on the body’s surface, and in turn “occupy” it, in order to successfully extract resources. Furthermore, a spacecraft’s presence on the surface of an extraterrestrial body for the purpose of mining it constitutes some level of explicit “usage.” Scholarship is split on whether private entities are bound by the provisions of Article II. Brittingham argues, for example, that the Outer Space Treaty does not explicitly prevent “non-governmental appropriation” of extraterrestrial bodies, and that private mining might therefore fall outside of the treaty’s limitations.[28] Yet such revisionism of the treaty is the result of interpretation, and as the scholarship of Blount, Wessel, and Vereshchagin would suggest, an equally valid interpretation can be made to the contrary. Indeed, Article VI, which details which entities are bound to the treaty’s provisions, leaves little room for interpretation. It lays out that “states shall be responsible for national space activities whether carried out by governmental or nongovernmental entities.” As states are expressly prohibited from appropriating extraterrestrial territory, and as private or “nongovernmental” activity in space is equated with state activity, it appears clear that space mining, be it private or public, is in violation of Article II of the Outer Space Treaty.

There is a further issue with Article I, which necessitates that the use of outer space be for the “benefit of all countries” and “all mankind.” Do space resources mined by a private company and brought back to Earth for use in a specific, private market fall within the scope of such a provision? The language of the Outer Space Treaty is ambiguous enough to leave questions about what entails the “benefit of all countries,” yet both scholarship and historical precedent seem to suggest that it is prohibitive of private, limited use of extraterrestrial resources. Lee argues that the costs of developing and maintaining a private or public extraterrestrial mining operation are so prohibitive that there is no incentive for states to share the derived benefits. Even if claims to and the usage of an asteroid for mining purposes is nonexclusive, the use of the resources produced would be. Ultimately, he argues, the use of outer space to exploit natural resources in outer space is different from scientific or exploratory purposes in that natural resources provide limited benefits to limited actors, while exploration provides the shared benefit to all mankind.[29] This is an entirely valid point, and further demonstrates how ambiguous language in the treaty has made it difficult to apply current developments to its provisions. In light of this interpretation, it would appear as though the exploitation of resources in outer space for private use is counter to the provisions of Article I, and therefore impermissible.

Scholarship aside, there is historical precedent which lends support to a prohibitive interpretation of Article I. In 1979, a fifth U.N. treaty, the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, was adopted by the General Assembly and opened for signature.[30] Among other provisions, the “Moon Agreement” further expanded past provisions on the non-appropriation of lunar territory. The centerpiece of the Moon Agreement, however, is a requirement that any exploitation of lunar resources be carried out through an international regime that would ensure all states share equitably in the benefits of those resources. Considering the burden that such requirements could place on national space programs, it is unsurprising that only thirteen states, none of which are major space powers, have ratified it.[31] Yet, despite its limited number of signatories, there is still significance in the language of the Moon Treaty and the context of its drafting when exploring the legality of private space mining. Drafted in roughly the same international environment and technological context as the Outer Space Treaty, the Moon Treaty equally represents the international community’s intentions for outer space conduct.[32] The use of outer space for the “benefit of all countries” was clarified by the establishment of an international space mining regime and the equitable sharing of resources among all states. Such an approach is entirely antithetical to the idea that a private space company, responsive to a single national government, can exploit resources and return them to Earth for private use and financial gain. Though the Moon Treaty is not widely signed and thus -does not constitute as much of the basis for space law as the Outer Space Treaty, its provisions suggest that any attempt to reinterpret Article I of the Outer Space Treaty to allow for private mining would be met with considerable opposition. Lee agrees, arguing that developing nations strongly favor an interpretation of Article I which provides for an equitable distribution of outer space resources. Though there is room for reinterpretation, there is the general perception that Article 1 is prohibitive of private mining for exclusive financial gain.[33]

As it stands, commercial mining in space is prohibited by the established provisions of international space law. For private individuals hoping to establish space mining companies and for national governments seeking to foster what would undoubtedly be a highly lucrative industry, the legal obstacles appear to currently be insurmountable. This, however, has not kept companies from seeking to develop such an industry, and indeed has not kept national governments such as the U.S. Congress from proposing standards to regulate it. The ASTEROIDS Act, introduced to the U.S. House of Representatives in 2014, is the first piece of national legislation to seek the facilitation of commercial exploration and exploitation of asteroid resources to “meet national needs.”[34] It provides for ownership of extracted resources from asteroids and other extraterrestrial bodies to the private entity which extracted them. Yet legal experts agree that the language of the bill, aside from being incredibly vague, does not appear to uphold the obligations set forth by the Outer Space Treaty. As a result of the contentious issue of resource extraction at the international level, the bill and others like it are unlikely to be passed.[35]

National Legislation, Regulation, and “Soft Law”

Though commercial asteroid mining is perhaps the most ambitious of private plans for outer space, there are other private industries, such as the commercial satellite industry, that already exist and some, such as the space tourism industry, that are soon to be realities. Space mining is prohibited by the language of the Outer Space Treaty, but other private activities are not. Indeed, considerable leeway is given in established space law for the growth of commercial spaceflight. So long as private spacecraft adhere to the standards and regulations set by their state of registration, thereby upholding those states’ international obligations per Article VI of the Outer Space Treaty, they are free to operate in outer space. States have come to regulate the specifics of these budding industries at the international level through the creation of “soft law,” non-binding agreements and declarations which establish standards and codes of conduct.[36] Meanwhile, at the national level, states have passed legislation, often very technical and specific in nature, which regulates and governs private spaceflight. As such, outside the vague framework of the U.N. treaties, national legislation and international “soft law” have become the main method through which the legal issues surrounding private and public spaceflight are addressed and accounted for.

The second period of international space law’s development, which saw a shift from binding treaties to non-binding agreements on more specific areas of law, began in the 1980s and 1990s. Among these agreements was the 1982 Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting, the 1986 Principles Relating to Remote Sensing of the Earth from Outer Space, and the 1992 Principles Relevant to the Use of Nuclear Power Sources in Outer Space.[37] A further agreement was the 1996 Declaration on International Cooperation, which expanded on the “province of all mankind” principle of outer space use.[38] These agreements are collectively known as the U.N. Principles on Outer Space, and were formed in response to the rapidly developing field of space technology. They largely clarify various portions of ambiguous language in past treaties, expand upon the obligations a state must uphold when regulating its national space activity, and provide methods by which international disputes regarding space activity can be resolved. The definition of a “launching state” was clarified in 2004 and recommendations on the registration of space objects were provided in 2007.[39] A 2007 set of guidelines contained recommendations on minimizing the creation of orbital debris in state and commercial space operations. Moving to the present day, proposals for international space agreements and space law are focused on developing codes of conduct. Most proposed codes of conduct provide for substantive limitations as well as confidence-building measures, yet are explicitly non-binding.[40]

While not all of the “Principles” and other “soft law” agreements constituting international space law pertain directly to private spaceflight, they nonetheless establish and promote general standards of the use of outer space and provide for the promotion of further international cooperation and understanding in space activities. Significantly, their non-binding nature can help states to maximize the goals they seek in outer space while minimizing the risks they take. As a result, soft law agreements are easier to achieve than hard legalization, allowing states to creatively tackle international legal issues surrounding space without making sacrifices of their own sovereignty.[41] In this way, despite the core of “hard” legal provisions established by the U.N. treaties, “soft law” allows for a degree of legal flexibility in responding to changing technologies and circumstances relating to the use of outer space. Furthermore, and perhaps more significantly, the establishment of a “soft” international legal regime has influenced domestic legislation relating to the regulation of private spaceflight.[42] As states, international organizations and institutions, and private actors become more aware of the current and potential benefits of space activity, they have started to more actively formulate their own space law policies and participate in the elaboration of legal rules governing space. The failure of the international community to establish new legally binding regulations for space has led to a burgeoning of national space legislation that now exists in more than twenty states. In a number of cases, the agreements and understandings reached through “soft law” have taken on a legally binding nature at the national level through the creation of domestic legislation.[43]

Nowhere can this be seen more readily than in the case of the United States’ domestic space legislation. Over the past few decades, there has been a significant increase in the passage of American legislation that regulates and monitors private space activity, often in line with the principles established by non-binding agreements. Among these is the 1984 Commercial Space Launch Act, which designated the Department of Transportation as the federal agency responsible for facilitating and regulating commercial space launch activities.[44] The 1992 Land Remote Sensing Policy Act established a regime for facilitating and regulating commercialization of land remote sensing satellites.[45] The 1998 Commercial Space Act gave the Department of Transportation regulatory authority over commercial spacecraft that return from space as well as launches into space.[46] One of the most prominent examples of legislation meant to incentivize the private use of space is the Federal Aviation Administration’s Human Spaceflight Requirements. These requirements encourage private human space flight by, among other things, requiring space flight provides to give informed consent to space flight participants in order to reduce possible claims against the space craft’s provider in the event of an accident.[47] These pieces of legislation, along with a number of others within the United States, the European Union, and other space-faring nations, constitute steps toward codifying a regulatory and legal regime for private spaceflight. In the absence of “hard” international law pertaining to private spaceflight, space law has taken on a distinct division into two autonomous systems – national law and international law. As such, space law does not exist as a single coherent and comprehensive body of legal principles, but rather as a complex interaction and linkage between domestic and international rules and regulations.[48]

Of course, there are limitations to the regulation of space activity, be it private or public, through the establishment of a “soft” legal regime. As the agreements and understandings reached by “soft law” agreements are non-binding, there is no expectation that states will adhere to them. The inability to effectively enforce the codes of conduct which “soft law” agreements establish means that there is considerable uncertainty over whether they truly influence the direction spaceflight regulation will take. Even in cases where domestic legislation codifies “soft law” agreements, there can be considerable divergences in the interpretation and eventual implementation of the principles they establish. Ultimately, codified, “hard” international space law represents the only legal regime capable of regulating spaceflight in a comprehensive, universal manner. Yet, despite this, there are arguments to be made that “soft law” agreements represent the first step toward the establishment of “hard law.” Scholarship is divided on whether the establishment of “soft law” through non-binding agreements creates lasting norms of conduct and, in turn, customary international law. Wessel argues that they do not, and that, rather, “hard law” is the only manner through which custom regarding space activity can be created.[49] However, he premises his argument primarily around legal theory and definitions of terms rather than a practical look at the reality of contemporary space activity. Vereshchetin and Blount, on the other hand, contend that “soft law” indeed does develop customs and support such contentions with evidence such as the codification of “soft law” in domestic legislation. Such an argument is convincing; regardless of its non-binding nature, “soft law” nonetheless represents an international consensus on how activity in space should be regulated and conducted. As states do not want their sovereignty constrained by such regulations, they have not codified them on an international level. Still, as evidenced by domestic legislation associated with “soft law” principles, there is a wide degree of acceptance of the codes of conduct “soft law” creates. Over time, this acceptance becomes broader and, as such, becomes international custom.[50] As will be discussed later, these customs are an important step toward the creation of a codified, international legal regime for private space flight.

Outstanding Legal Issues with Private Spaceflight

As private space flight and the space tourism industry are still in their infancy, there are a number of legal questions and issues surrounding them that have yet to be resolved. Moving forward into the future, these issues will need to be addressed by domestic and international law in order to ensure the continued growth and success of these industries and effective regulation of outer space. Among the myriad of legal issues surrounding private spaceflight today that have yet to be resolved are the clear definition of what constitutes outer space, the definition of what constitutes a “space tourist,” liability and protections for private individuals participating in space activity, and the status of legal protections for private installations such as space hotels on celestial bodies. There are also a number of other concerns which will eventually need to be addressed as private and public activity in space develops through the 21st century.

From a legal perspective, there is as yet no clear definition of what constitutes outer space. While activity in outer space has continued to develop regardless of this uncertainty, there is now an important, practical reason to determine a clear legal distinction between commercial aviation flights and commercial space flight. Tourist activity that takes place in outer space is not subject to prior consent on the part of any sovereign state, although it remains subject to the supervision and authority of the state to which it is registered. Yet any space tourist activity requiring a launch from Earth and a return to Earth will also involve a use of ‘air space,’ thereby making the law of air space relevant to the legal position of space tourism. The territorial nature of air space is reflected in prior law treaties, which provide that every state has complete and exclusive sovereignty over the air space above its territory.[51] Consequently, civil and commercial aircraft only have certain limited rights to enter the air space of another state.

As such, it is important to determine what legal regime applies during specific parts of commercial flights into space. However, there has, over the years, been controversy over how far air space extends above the surface of the Earth, and international consensus over the issue has yet to be reached.[52] Among the significant questions surrounding these issue are whether air law should apply for the part of the journey into space that takes place within the Earth’s atmosphere while space law is applied at some yet-defined point in the overall activity. Furthermore, there is the issue of whether this legal position differs for orbital and suborbital flights, which take place at varying altitudes within and above the Earth’s atmosphere. The applicability of different laws represents an unsatisfactory and impractical solution and lead to uncertainty in the absence of a clear delineation between air space and outer space.

There is also the issue of what constitutes a “space tourist.” International space law makes no reference to “tourists,” though it does address space travel by “personnel of a spacecraft.” The Outer Space Treaty obligates states to render assistance to astronauts in the event of an accident, distress, or emergency landing, obligations further developed in the Rescue Agreement. Furthermore, the Moon Agreement confirms that any person on the Moon is to be regarded as an astronaut. Yet, because of the ambiguity of language in the Outer Space Treaty, it is not clear whether a commercial space tourist would fall within the classification of “astronaut” and therefore be granted the privileges established by international space law. Though the language of these treaties can be interpreted to include space tourists within the classification of “personnel of a spacecraft,” the status of private individuals in space needs be clarified. As tourism in outer space increases, the issues which the Rescue Agreement attempts to resolve will come to apply to these private individuals. Until their status is clarified, uncertainty surrounding it is likely to hamper the further development of tourist space activity.[53]

Another further legal issue relating to the status of a space tourist stems from the language of the Liability Convention, which explicitly does not apply to damages caused by a space object to foreign nationals during any time they are participating in the operation of that space object. That is, if a foreign national is in control of or working within a space object, they are not protected from damages caused by that space object. Though space tourists would generally not fall within this exception, for they would not normally be operating a space vehicle, a level of uncertainty arises from the Liability Convention’s language and must therefore be clarified.[54] Because space tourism is still in its infancy, there has yet to be continuing instances where a private individual is in control of or somehow operating a spacecraft. Yet, as space tourism continues to develop, such a case is a likely eventuality, and must therefore be accounted for. Space tourism, being a risky commercial endeavor, is reliant upon guarantees of protection and liability to entice customers and grow as an industry.[55] Until those protections are in place and the status of liability for tourists are clearly established, the industry is unlikely to attract a significant number of participants.

To that end, if the space tourism industry is to continue to develop, every effort must be taken to ensure the safety of those on board tourist spacecraft. Once the general public is more heavily involved in space activity, Freeland contends, the minimum required safety record of spaceflight must be significantly improved.[56] There must be a system of responsibility and liability established at the international level and supplemented by domestic law to regulate the circumstances when a space tourist suffers injury, loss, or damage. Doing so would remove current uncertainties surrounding available remedies to loss and would ensure that proper risk avoidance procedures are put into place. With relation to this, international space law is, inadequate. Article VII of the Outer Space Treaty, along with the more detailed liability regime laid out in the Liability Convention, explicitly impose international liability for certain damage caused by a space object on its launching state alone.

When damage is suffered by an individual, the procedures established by the Liability Convention only allow for legal action to be taken by a relevant state. As such, this requires political will on the part of that state to present a claim to a launching state. To date, as no such claim has yet been made by any state, it is not certain that a state would decide to engage in such an action in the future. Meanwhile, space tourists themselves are unable to claim compensation under the Liability Convention. While there may be room to institute legal proceedings under national laws, limitations such as sovereign immunity protections may represent a challenge to a claim for compensation.[57] Furthermore, even though domestic legislation may seek to regulate the space industry and provide for standards and protections, there is a danger that the lack of a uniform international law liability regime will give rise to further uncertainty, and therefore doubt, in this area. Freeland suggests that a comprehensive regime for passenger liability, which allow for direct private claims by passengers for damages and which should operate from the moment of launch until the safe return of a spacecraft, needs to be established.[58] Again, until this regime is put into place, the space tourist industry, being inherently risky, will have difficulty attracting a significant number of customers.

There is the further issue of the “non-appropriation” clause in the Outer Space Treaty and how it will affect private space installations. While the language of the Outer Space Treaty prohibits activities such as space mining, which entail an appropriation, exploitation, and utilization of outer space resources, it is ambiguous on other activities that might suggest some level of appropriation of space territory. It is foreseeable that, as space tourism develops, a demand will emerge for the constant presence of tourists on the Moon or other celestial bodies; this may necessitate the construction of permanent or semi-permanent space hotels. It will be important for the owner or operator of such a structure to gain some level of legal protection in relation to the site of that hotel; perhaps, Freeland suggests, akin to some lease title available on Earth.[59] However, in the absence of sovereignty on the Moon, it is not possible under existing international space law to assert that any jurisdiction applies to the area on which that hotel is constructed. Even if the language of the Outer Space Treaty is interpreted to include space hotels under the definition of a ‘space object,’ so that they can be registered to a single state and therefore given some level of legal protection, these protections would only extend to within the hotels, not to the surface of the Moon. As states are unable to exercise jurisdiction over celestial bodies, it is currently thus impossible to determine how a Moon hotel or other private installation would be granted any legal protections and claims over the site it occupies. Without these, private entities will lack the incentive to invest in such activities.[60] As such, some form of property rights associated with the construction of tourism related facilities on celestial bodies may need to be developed.

Finally, there is the issue of the many questions that will arise regarding the regulation of future space tourism activities. Should there be any restriction on the nature of these activities, and on what basis should these restrictions be determined? Would it be, for example, acceptable to allow advertising billboards to be constructed in Earth orbit or on the Moon? Will casinos or perhaps even brothels be allowed to be established on the Moon in order to cater to tourists or other private individuals? Such questions are unlikely to be pressing in the immediate or near future, yet, eventually, as space technology continues to develop and more individuals enter outer space, they will need to be addressed. Considering that such issues affect outer space, which is considered the domain of humankind, they will need to be addressed and regulated in an international manner. In a similar fashion, there is the issue of human inhabitants of future space colonies. What are the rights of individuals who live their entire lives in outer space or who were perhaps even born in a settlement on the Moon? Will their rights or civic duties in space differ from those on Earth? For individuals born in space, what will be the status of their nationality? Again, such issues are a concern for the more distant future, but will eventually need to be dealt with on an international level. As international space law develops, such questions will have to be taken into consideration by those who draft domestic space legislation and international treaties.

Toward the Future of International Space Law

As has been seen, contemporary space legal regime is a mixture of non-binding “soft law” and codified, enforceable “hard law” at the domestic and international levels. Built around a series of historical U.N. treaties, binding space law fails to account for the rapid involvement of private entities and commercial activity in space. As private industry in space continues to develop, and as states such as the United States continue to support and foster such industries, it is inevitable that the current legal regime is going to change. As can be seen in the case of what the drafters of the Outer Space Treaty created, predicting the future of spaceflight is difficult to do. Changes in technology and private industry are hard to account for, making it difficult to create a lasting and effective regulatory regime. Nonetheless, drawing current and historical trends in the development and character of space law into consideration, various possibilities for what the future of international space law will look like become apparent.

One potential direction is scrapping the current codified legal regime. There are a number of questions about whether the established legal regime built around the Outer Space Treaty is effective in a rapidly changing world. Drafted in the context of the Cold War environment, it is framed around a limited, exclusively public approach to spaceflight without accounting for private commercial activity. The ambiguity of its language leads to a lack of clarity on its rules. Questions of and disagreements of meaning can potentially lead to ineffective regulation of some space activities.[61] These shortcomings could justify the negotiation of a new international treaty or series of treaties that better accounts for commercial spaceflight and changes in technological capabilities. Such treaties would incorporate the technical and regulatory developments that national governments have developed for their own private space sectors along with elements of “soft law” that have become widely customary and accepted among states.[62]

Yet there are prevailing counterarguments against both the wisdom and practicality of such an approach. As evidenced by its wide ratification, there is a broad consensus in the international community that the principles laid out by the Outer Space Treaty are important to have established. The treaty sets out values that still constitute the core of international space law, many of which have become customary law. In light of this, it is difficult to that abandoning the treaty framework would be acceptable for most states. Indeed, states seem uninterested in negotiating new binding law which would constrain their current levels of sovereignty. Such is why “soft law” and non-binding codes of conduct have become a primary mechanism in which the regulation of spaceflight has developed. Though states are interested in fostering private space industries, which the treaty framework fails to account for, such industries are still too early in their infancy to be tangibly hampered by treaty provisions. Considering this, it is unlikely that the Outer Space Treaty will be abandoned. Recent trends in the development of space law have made the renegotiating of binding international space law outside the realm of current or near-future possibility.[63]

It is, as mentioned, impossible to predict the future of spaceflight because of its rapidly changing and developing nature. As such, any new treaty framework would fall prone to the same issues that affect the Outer Space Treaty’s ability to account for all scenarios. However, this leads to the argument that the Outer Space Treaty’s ambiguity and lack of many hard proscriptive articles is advantageous, for it allows for adaptability. Regulating with ambiguous language requires states to cooperate in order to develop universal standards of regulation and therefore avoid conflict. To that end, some have argued that the treaty can and should be revised or “remapped” into something that is capable of accounting for current developments. One potential manner in which this would be done is through the clarification of treaty provisions by “soft law” agreements, developments in domestic legislation, and international custom. As mentioned, states have developed domestic legislation to correspond with the codes of conduct set out by “soft law” agreements. While this legislation is up to the state’s interpretation of what those agreements entail, it nonetheless establishes a regulatory regime which influences the conduct of private spaceflight. Over time, the regulatory mechanisms established by domestic law or which are suggested by non-binding agreements become standard procedure and, in turn, international norm.

States are, of course, legally obligated to uphold their responsibilities as laid out by the Outer Space Treaty. Yet, ultimately, the binding quality of that obligation is only as strong as the international community’s willingness to call a state into question if it is in violation of a treaty provision. Often, this willingness is limited; states hardly ever seek consultation on whether their or another state’s activity is in violation of treaty provisions, an available option described by Article IX of the Outer Space Treaty.[64] For example, a 2007 Chinese outer space test of an anti-satellite missile, conducted without consulting the international community about potential violations of treaty language, amounted to a violation of Article IX of the Outer Space Treaty. However, no state, save for Japan, invoked Article IX in protest against China’s military test.[65] This indicates that states have a degree of flexibility and leeway in the activities they conduct in outer space, and may conduct activities outside the bounds of the Outer Space Treaty if the international community does not condemn it. Seen in this context, there is the great potential that domestic legislation in space faring nations regulating private space activity will pioneer the establishment of an international regulatory regime for private spaceflight.

Ultimately, the private space sectors in some states are more developed and farther advanced than those in others, and thus necessitate a higher degree of attention and regulation for their state’s government. The the legislation these states develop influence the conduct of private activity in space, which is held in the domain of all humankind, impacts the entire international community, and states are expected to ensure that their private sector upholds international obligations. As such, other states can call into issue the approach some states to take regulating their private sectors. Regulations which the international community takes issue with, such as is likely to be the case with the ASTEROIDS Act, will ultimately need to be repelled or fail to become lasting procedure. Those which are acceptable to the international community, on the other hand, will come to define through custom and practice the manner in which private space activity occurs.

Accordingly, it seems that the states pioneering private space flight, such as the United States, will develop increasingly technical and evolving legislation to adapt to changes in space technology. As they do, they will enter non-binding, “soft law” agreements which establish codes of conduct for the developing legal and regulatory regime. So long as the international community does not call the evolving legal regime into question and argue that it violates the provisions of the Outer Space Treaty, it will become solidified into customary international law. Over time, if changes in the geopolitical environment occur or if enough states come to fully accept the stipulations of these customs, there might be enough international impetus to codify them into hard, international law. Meanwhile, differences in domestic regulatory regimes for private spaceflight or differences in interpretations of “soft law” agreements regarding private spaceflight will likely be resolved through market mechanisms. Blount argues convincingly that it is economically advantageous and beneficial for private entities to seek universal standards of regulation, liability, and protection.[66] As such, they will petition their national government to establish standards which correspond with the standards of other states. In order to foster the further development of lucrative space industry, states will, over time, come to agree upon universal standards for private space flight regulation.

There is, of course, the issue of space mining, which is prohibited by the language of the Outer Space Treaty. Ultimately, as described, it may be up to the states that pioneer the space mining industry to determine whether such industries are allowed and how they would be regulated. It has been suggested that states could enter non-binding agreements or establish mutual understandings of what constitutes “appropriation” of space territory and resources or clarify that the private use of space resources falls within the provisions of the Outer Space Treaty.[67] As mutual understandings are reached and defined, the international community could become more receptive to the idea of private space mining. After all, as such an industry is still decades away, it is possible that more nations will have begun fostering their own private space industries and recognizing their potential benefits by then. States such as the United States should therefore be encouraged to seek greater dialogue and cooperation with others which have private space industries. Of course, it is entirely possible that states will not come to accept private space mining or take issue with the way it is implemented.[68] In such an event, states are going to need to consider either abandoning such an industry in order to uphold their international obligations or abandon their ratification of the treaty in order to foster their industry.

Such is the challenge of private and state involvement in rapidly changing and evolving space activities. If international space law is to remain built around the provisions of the Outer Space Treaty and universally enforceable, it will need to account for new developments in private spaceflight. Otherwise, states may decide it is more within their interest to abandon the current treaty framework and instead make their own choices when it comes to private space activity. As Vereshchetin rightly points out, it is imperative that some established, codified principles for space be maintained, for outer space is the domain of all humankind. Moving forward into the future of spaceflight without them would be a dangerous endeavor, one likely giving rise to the very suspicion, tension, and conflict which the Outer Space Treaty sought to prevent. Ultimately, then, some international solution to the issue of private space mining, be it through a clarification of codified language or the reaching of a general consensus on conduct, must eventually be reached.

Conclusion

Private, commercial activity in outer space is bound to cause revolutionary changes in international space law. Though a myriad of legal issues exist surrounding private spaceflight, space tourism, space mining, and private space installations, the international community has come to gradually deal with them through domestic regulation and non-binding international agreements. However, for private space activity, significant issues still remain with the “hard law” core of international space law. States, recognizing the benefits of space, are undoubtedly going to foster and develop their private space sectors. Yet, as they are required to uphold the provisions of codified international space law, they will find ways to foster such industries while still maintaining their responsibilities. This will likely come through the development of a legal regime through “soft law” and domestic legislation which, if and when accepted by the international community, will become international custom. Eventually, such customs will define the procedures that characterize the private use of outer space. Yet issues remain with activities such as space mining, which are expressly prohibited by the language of the Outer Space Treaty. As it appears unlikely that the Outer Space Treaty is going to be abandoned, and as there is little willingness in the present to redraft a new treaty, the international community is inevitably going to need to discuss and resolve the legal hurdles and issues surrounding space mining. If they fail to, states may deem it more economically beneficial to support the industries and abandon the treaty framework than to abandon their industries. Such would be a dangerous future for human spaceflight, one that the international community can and should actively work to prevent.

[21] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, opened for signature Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 (entered into force Oct. 10, 1967)

[22] Brian Wessel. “The Rule of Law in Outer Space: The Effects of Treaties and Nonbinding Agreements on International Space Law.”

[38] Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries, G.A. Res. 51/122, U.N. GAOR, 39th Sess., 83rd plen. mtg., U.N. Doc. A/RES/51/122 (Dec. 13, 1996).

[57] Lauren S B Bornemann. “This Is Ground Control to Major Tom … Your Wife Would Like to Sue but There’s Nothing We Can Do …The Unlikelihood that the FTCA Waives Sovereign Immunity for Torts Committed by United States Employees in Outer Space: A Call for Preemptive Legislation.” 63 Journal of Air Law and Commerce (1998)

[58] Steven Freeland. “Fly Me to the Moon: How Will International Law Cope with Commercial Space Tourism?”